Private Use
on Musical Works, Rights of Public
Performance,
and Collecting Society Systems.
By'
Judge Visit Sripibool
competition
policy may be identified to the scope of establishing a competitive order
as and end in itself to safeguard economic freedom, Maintaining technological
and economic progress, providing for a level playing field of fair competition,
which implies prohibition of deceptive and fraudulent practices, threat,
extortion and blackmail as well as unfair advantages through government
subsidies, maintaining a decentralized structure of supply because small
and medium-sized enterprises are considered as the backbone of a democratic
society.(226) However, in the meaning of the exclusive right, the monopolies
of collecting societies may not be exhausted because a first need of the
societies is to have a monopoly in this field. This is in the interest
of the rightowners and also of the users who want a one-stop-shop. In
Europe the European Court of Justice, the highest guardian of European
competitive law, has recognized the need for strong societies. While,
the American courts, however, believe in different balance, and will not
for instance allow monopolies of collecting societies, which are also
restrained in many other ways. (227) So, sometimes, the collecting societies
must be supervised by governmental organizations or by laws for the purpose
of fair practice both their members and users.(228)
The Copyright
Tribunal
Sometimes,
collecting societies may abuse their powers. That may cause the members
to be damaged. And sometimes, it may make discriminations to customers
or licensees. So societies, in most countries, have to be controlled by
a tribunal. However, the systems of Copyright Tribunal in each country
are slightly different. Those different aspects can be shown below as
follows;
The United Kingdom
In the United Kingdom,(229) the Copyright Tribunal was established under
the Copyright Act 1956, the former name was Performing Right Tribunal,
later it has renamed the Copyright Tribunal. The purpose of establishing
the Performing Right Tribunal is to prevent or deal with any abuse of
the monopoly rights conferred upon owners of copyright.(230) Even though
the United Kingdom is one of members of the Berne Convention,(231) there
are many provisions for the Performing Right Tribunal. The Copyright Tribunal
is made up of a chairman and two deputy chairmen appointed by the Lord
Chancellor after consulting the Lord Advocate, and between two and eight
ordinary members appointed by the Secretary of State. Persons appointed
as chairman or deputy chairmen must be barristers, advocates or solicitors
of at least seven years' standing, or who have held judicial office. The
copyright, Designs and Patents Act 1988 section 146 contain provisions
for the resignation or removal of members of the Tribunal and provision
is made for the payment of members in section147, as well as for the appointment
of staff for the Tribunal.
The constitution of the Tribunal for the purpose of proceedings is to
comprise a chairman, either the chairman or a deputy chairman, and two
or more ordinary member. Voting on decisions is by majority, with the
chairman having a further casting vote if the votes are otherwise equal.
The jurisdiction of the Tribunal is set out in section 149 as being to
hear and determine proceedings under:
1 the reference of a proposed or existing scheme, for example by an organization
representing persons claiming they require licences which are covered
by the scheme;
2 an application with respect to entitlement to a licence under a licensing
scheme, for example where a person has been refused a licence by the operator
of a licensing scheme;
3 the reference or application with respect to licensing by a licensing
body, for example as regards the terms of a proposed licence or the expiry
of an existing licence in the case of certain types of works and acts;
4 appeals against the coverage of a licensing scheme or licence as regards
the power of the Secretary of State to extend the coverage of schemes
and licences relating to the reprographic copying by educational establishments;
5 applications to settle royalty payments in respect of compulsory licenses
granted by the Secretary of State in respect of sound recordings, films
and computer programs under section 66;
6 applications to settle the terms of licences available as of right as
a consequende of a report of the Monopolies and Mergers Commission;
7 applications under section 135D in respect of the statutory licence
to broadcast sound recordings;
8 applications to give consent under Part II of the Act which concerns
rights in performances;
9 determination of the royalty or other payment to be made to the trustees
for the Hospital for Sick Children, Great Ormond Street, London.
The copyright, Designs and Patents Act 1988 has further provisions as
regards the making of procedural rules for the Tribunal and fees to be
charged, and under section 151, the Tribunal can make orders as to costs.
Finally, under section 152, appeals may be made to the High Court, or
to the Court of Session in Scotland, on any point of law arising from
a decision of the Tribunal. It should be noted that the Tribunal is not
a proactive body and can only respond to applications and references made
to it.
Austria
Austria,
under the Austrian Copyright Law there is established a special Arbitration
Board whose powers include the resolution of disputes between copyright
collecting societies and users' organizations. Its members include one
nominated by the collecting method of resolving disputes about tariffs
but in practice it has been very rarely used.(232)
Germany
Germany,
in Germany the tariffs of copyright societies are subject to the jurisdiction
of the ordinary civil court; a court action must be preceded by proceedings
before the Arbitration Board of the German Patent Office which is the
supervisory authority under the provisions of the Law on the Administration
of Copyright and Neighbouring Rights of 1965. The Board comprises a Chairman
and two Associates who must all be qualified to hold the office of judge.
After attempts to reach an amicable settlement of a dispute have failed
, the Arbitration Board's duties are limited to submitting a non-binding
conciliatory proposal that can, but does not have to be, accepted by the
parties. If, in the course of an already pending legal dispute, it should
appear that a royalty rate is in dispute, the proceedings will be suspended
until a decision has been reached by the Board. In addition to having
jurisdiction over disputes about the tariffs of copyright societies, the
Board can also be referred to in other types of dispute, for example,
disputes over the grounds of a claim, the infringement of copyright, the
obligation to pay royalties of the authority of a society to act on behalf
of specific rightholders. The Law requires that the proposals of the Arbitration
Board must be fair and reasonable and that it must apply objective criteria
to determine whether a royalty is reasonable. These arrangements are generally
considered to be satisfactory as they have given to copyright societies
and users alike and instrument capable of striking a fair balance between
the interests of creators and the users of their works.(233)
Switzerland
Switzerland,
in the Swiss Federation, societies administering rights collectively require
a licence to operate from the Federal Intellectual Property Office, which
has general supervisory powers over them. Their tariffs have first to
be negotiated with the appropriate users' association and then submitted
to the approval of a Federal Arbitration Board. The members of this Commission
are appointed by the Federal Council, and at each hearing there are five
members, comprising the President, two independent assessors and two additional
members, one nominated by the users' organizations and the other by the
collecting societies. The Board is required to approve a tariff if it
considers that its structure and provisions are 'appropriate'; if not,
after hearing evidence from both sides, it has power to modify its terms.
Unusually(and helpfully) the legislation lays down several detailed criteria
for calculating the remuneration payable under a tariff. These are:
1 the users' receipts attributable to the utilization concerned or, if
such receipts are not identifiable, the costs of such utilization.
2 the number and kind of protected works or other subject matter used;
and
3 the proportion of the works etc used which are protected compared with
those in the public domain.
The law also specifies that, for authors' rights, the maximum remuneration
payable is 10 % of the user's receipts or cost and, for neighbouring rights
3%. The Board's decisions can be the subject of appeal to the Federal
High Court.(234)
Australia
Australia,
in Australia, the Copyright Tribunal, established under the Copyright
Act 1968, is similar in the scope of its jurisdiction to the 1988 UK Tribunal,
including determination of remuneration to be paid in respect of certain
uses which are subject to compulsory licenses. The Australian provisions,
which are generally considered to have worked well in practice, differ
from those in the United Kingdom in another interesting respect, namely,
that in Australia a licensing body may itself, as a kind of pre-emptive
measure, refer its own license scheme for adjudication by the Tribunal
in the hope that it will be confirmed as reasonable.(235)
New Zealand
New
Zealand, Under its 1962 Copyright Act, New Zealand established a Tribunal
which, both in its constitution and extent of jurisdiction, closely resembled
the old UK performing Right Tribunal, the main differences being:
1 that, unlike that Tribunal, its jurisdiction included licences to make
sound recordings or cinematograph films for the purpose of broadcasting
them and (in the case of cinematograph films) to broadcast them; and
2 that its jurisdiction extended to the terms and conditions of licences
offered or granted by individual copyright owners (as does also the jurisdiction
of the Australian and South African Tribunals).
The New Zealand Copyright Act 1994 maintained this Tribunal and widened
its jurisdiction to correspond broadly to that of the 1988 UK Tribunal.(236)
South
Africa, the constitution and jurisdiction of the South African Tribunal,
established by the Copyright Act 1978, is largely based on the 1956 UK
model, the main differences being:
1 that, as in the Republic of Ireland, its powers are vested in a single
person (in this case the Commisioner of Patents);
2 that unlike the 1956 UK Tribunal, its jurisdiction is not limited to
performing and broadcasting rights but extends to licenses and license
schemes in respect of all the right granted under the Act; and
3 that (as in Australia and New Zealand) it has jurisdiction over licenses
offered or granted by individual copyright owners.(237)
Canada
Canada, under the Canadian Copyright Act 1985, any organization issuing
licences for performances of copyright musical work is required to file
annually with the Copyright Office statements of the tariffs it proposes
to apply during the next ensuing calendar year. These are then published
in the Canada Gazette with notification that any person having any objection
must file his objection within a stated period. Objections received and
then referred to a Copyright Board established under the Act, consisting
of a 'person who holds or who has held high judicial office' (the Chairman)
and not more than four other members appointed by the Government. Proceedings
of the Board are governed by rules made by itself and on the conclusion
of its consideration it may make such alteration in the proposed tariffs
as it thinks fit. The fees and charges determined by it are then published
in the Canada Gazette and any user who tenders payment in accordance with
the Board's decision is immune from any infringement proceedings even
if the licensing body concerned has not actually granted its licence.
Its decisions are subject to appeal only on restricted legal grounds.
Although this system has been criticized as unjustifiably prejudicial
to the authors' exclusive right, it is, on the whole, considered to have
worked efficiently and in particular it has effectively removed the risk
of anti-trust accusations against Canada's performing right society (SOCAN),
in marked contrast to the position across its southern border. Canada's
1985 Act also provides a mechanism for the determination by the Copyright
Board of royalties and related terms and conditions in other areas of
copyright (for example, reproduction rights) in the event that a party
or parties wish to invoke the jurisdiction of the Board for that purpose.(238)
The United States
of America
The
United States may be different from others. Under the US Copyright Act
1976, there was created a Copyright Royalty Tribunal comprising five governmentally
appointed Commissioners who appointed their Chairman annually from among
their numbers. The Tribunal's jurisdiction was, however, limited:
1 to determining royalty rates payable under certain compulsory licenses,
and
2 to determining the distribution of royalty fees deposited with the Register
of Copyrights in respect of certain of those compulsory licenses.
The constitution and operation of this Tribunal was the subject of considerable
political controversy, and it has recently been abolished, its functions
being transferred to arbitration panels appointed by Libraian of Congress
on the recommendation of the Register of Copyright.
The licensing organizations which administer musical performing rights
in the United States were not subject to the jurisdiction of this Tribunal.
They operate under consent decrees resulting from anti-trust proceedings
brought against them by the US Department of Justice. In the case of the
only one of the three organizations administering musical performing rights
which is owned and controlled by those whose rights it administers (ASCAP),
the consent decree provides that applicants for licenses on terms which
cannot be agreed between the parties may apply to the Federal District
Court for the Southern District of New York for the determination of a
reasonable fee. In such proceedings the burden of proof in on ASCAP to
establish the reasonableness of the fee
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(226)
Manfred Neumann, Competition Policy History, Theory and Practice, Edward
Elgar Publishing, 2001 at 1.
(227) See Id, supra note 186.
(228) See Lingen, supra note 178, at 211-216.
(229) See Bainbridge, supra note 194, at 85.
(230) Michael Freegard, Jack Black, The decisions of the UK Performing
Right and Copyright Tribunal, Butterworths, 1997 at 9.
(231) Id. at 2. The United Kingdom is a member of the Berne Convention
but the United Kingdom made the following declaration in relation to Article
11 of the Convention:
'The United Kingdom delegation accepts the provisions of Article 11 of
the Convention on the understanding that His Majesty's Government remains
free to enact such legislation as they may consider necessary in the public
interest to prevent or deal with any abuse of the monopoly rights conferred
upon owners of copyright by the law of the United kingdom.'
(232) Id. at 46.
(233) Id.
(234) Id. at 47.
(235) Id at 48.
(236) Id.
(237) Id.
(238) Id. at 49. |